431 F.3d 1019 (7th Cir. 2005), 05-1365, FedEx Freight East, Inc. v. N.L.R.B.

Docket Nº:05-1365, 05-1791.
Citation:431 F.3d 1019
Party Name:FEDEX FREIGHT EAST, Inc., Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.
Case Date:December 12, 2005
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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431 F.3d 1019 (7th Cir. 2005)

FEDEX FREIGHT EAST, Inc., Petitioner, Cross-Respondent,


NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.

Nos. 05-1365, 05-1791.

United States Court of Appeals, Seventh Circuit.

December 12, 2005

Argued Oct. 26, 2005.

Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board, Case No. 13-CA-40188.

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[Copyrighted Material Omitted]

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William A. Blue, Jr. (argued), Constangy, Brooks & Smith, Nashville, TN, Michael D. Giles, Constangy, Brook & Smith, Birmingham, AL, for Petitioner, Cross-Respondent. Kellie Isbell (argued), Aileen Armstrong, National Labor Relations Board, Office of the General Counsel, Washington, DC, for Respondent, Cross-Petitioner.

Before FLAUM, Chief Judge, and EVANS and WILLIAMS, Circuit Judges.

FLAUM, Chief Judge.

Tommy Grass ("Grass") filed a charge under section 10(b) of the National Labor Relations Act ("Act"), 29 U.S.C. § 10(b), alleging that his employer, FedEx Freight East, Inc. ("Cross-Respondent" or "FedEx"), engaged in unfair labor practices by suspending and discharging him based on his union activity. After investigating the charge, the General Counsel of the National Labor Relations Board ("Board") issued a complaint alleging that FedEx violated section 8(a)(1) of the Act by threatening Grass and section 8(a)(3) of the Act by suspending and discharging Grass based on his union activity. 29 U.S.C. §§ 158(a)(1), (3). The ALJ found for the General Counsel. The Board adopted the ALJ's recommended order, but only part of the ALJ's reasoning. The Board ordered FedEx to cease and desist from discriminating against employees based on union activity, ordered FedEx to reinstate Grass, and awarded back pay. FedEx petitions this Court for review of the Board's order. The Board brings a cross-petition

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for enforcement of its order. For the following reasons, we deny FedEx's petition and grant the Board's cross-petition.

I. Background

Grass was a driver at FedEx's Summit, Illinois terminal from June 3, 1996, until he transferred to the company's newly constructed Chicago Heights terminal in March 2001. He remained a driver at the Chicago Heights terminal until his discharge on May 15, 2002. Prior to Grass's discharge, Grass's supervisors found him to be a "good worker" with "good numbers." Witnesses for FedEx testified, however, that Grass was a slow worker and was sometimes suspected of "milking the clock." Nonetheless, Grass was never officially reprimanded by FedEx.

At the time of the incidents alleged in the General Counsel's complaint, Art Hollrah ("Hollrah") was a terminal manager and Grass's immediate supervisor at Chicago Heights. Hollrah reported to David Boyle ("Boyle"), a vice president of Cross-Respondent. Stuart Baxter ("Baxter") was Hollrah's human resources manager. Chris Merritt ("Merritt") was a city dispatcher and also a supervisor of Grass's, within section 2(11) of the Act, 29 U.S.C. § 152(11), during the relevant period. Tammy Despaltro ("Despaltro") was Grass's human resources representative at the Chicago Heights terminal and was a supervisor within section 2(11) of the Act, 29 U.S.C. § 152(11). Robert Paulsen ("Paulsen") was Cross-Respondent's operations supervisor at the time, Bill Hawkins ("Hawkins") was a dispatcher at the Chicago Heights terminal, and Steve Cawgill ("Cawgill") was an operations manager.

In 1997, the International Brotherhood of Teamsters, Local 710 ("Union") attempted, unsuccessfully, to organize FedEx's drivers. At this time, only the Summit terminal was in operation. Grass was on the Union's organizing committee in 1997 and wore Union buttons on his hat and jacket while at work. In 2001, the Union again attempted to organize FedEx's drivers. In September 2001, Grass signed a Union authorization card and began speaking in favor of a renewed organizational effort to other drivers at the Summit and Chicago Heights terminals. There is no evidence in the record that any supervisor observed these activities, and Grass did not wear Union buttons in 2001. In December 2001, the Union filed a petition seeking to represent Summit and Chicago Heights drivers. The Union failed to generate sufficient support from drivers. Therefore, on December 28, 2001, the Union withdrew the petition for the Chicago Heights drivers and on January 30, 2002, withdrew the petition for the Summit drivers.

According to Grass's testimony, which the ALJ and the Board credited, Grass and human resources representative Despaltro had a conversation at Bally's Health Club in Chicago on January 12, 2002, about the Union's organizational activities. According to Grass, Despaltro told him that he was "making a big mistake with this union thing." Grass also testified that he had several conversations with Despaltro through late January, in which he argued that employees would benefit from affiliation with the Union. The ALJ credited this testimony. Grass further testified that Despaltro told him that FedEx would close the facility if the Union was voted in. The ALJ did not credit this statement, in large part because Grass did not include it in his affidavits.

Additionally, Grass testified that in early January 2002, he was involved in an argument with Merritt in which Merritt accused Grass of taking more time than necessary to perform certain tasks. Grass reported that at the end of the argument, Merritt stated, "What are you mad

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[about]? Because the Union didn't get in?" Grass responded that his differences with Merritt had nothing to do with the Union. Merritt did not deny Grass's testimony, and the ALJ credited it.

The record shows that in late January 2002, FedEx took Grass off his usual route and assigned him to another one. In early February 2002, Grass complained to Boyle about the change. According to Grass, Boyle told him that he "didn't like [Grass's] attitude," that he would not let Grass "stay here and ruin this Company," and that Grass "knew what [Boyle was] talking about." Grass replied that he had worked hard for the company for 5/4 years "and this is the thanks I get." Boyle did not deny this testimony and the ALJ found it to be credible. Soon after, FedEx restored Grass to his usual route.

Operations supervisor Paulsen testified that around the same time as the incident with Boyle, dispatcher Hawkins told Paulsen that Grass was "poisoning" the company and that Paulsen should keep a close watch on Grass. Paulsen also testified that FedEx was aware of Grass's involvement with the Union. Additionally, Paulsen testified that he told supervisor Hollrah and operations manager Cawgill that he had been a union driver and would not be a "headhunter" for Cross-Respondent and discharge employees without cause. The ALJ credited Paulsen's testimony.

On April 30, 2002, Grass was driving his old route. He was scheduled to make 11 deliveries and 4 pick-ups. Grass testified that he had to reverse the order of his usual route, which resulted in some delays, because FedEx employees had loaded his truck backwards. Grass testified that he was also delayed that day because a customer loaded its freight onto his truck in a way that blocked other deliveries. Grass testified that by the time he was scheduled to take his unpaid half-hour lunch break, he had not completed his morning deliveries and decided to complete a delivery while on his lunch break. He wrote on FedEx's driver detail form that he took lunch from 1:18 to 1:48 p.m. and that from 1:41 to 1:47 p.m., he made a delivery to the Auburn Corporation. Grass testified that at 3:17 p.m., he arrived at the Thomas Dodge Company for a pick-up. According to Grass, the freight he was to pick up was not yet ready, and he waited at Thomas Dodge until 4:17. Grass testified that he called dispatcher Merritt to report the problem and that Merritt told him the Thomas Dodge assignment would be erased from FedEx's computerized records. The paperwork generated by Grass's itinerary for April 30 shows no activity for the hour of 3:17 p.m. to 4:17 p.m.

Grass reported that because of the delays, he was unable to make his final two deliveries of the day, to Adheron Coatings and Fisher Services. Grass testified that he called Merritt to explain the problem and Merritt instructed Grass to report that the deliveries could not be made because both customers had closed by 3:00 p.m. FedEx's records show that Grass marked the 3:00 p.m. close time as the reason for his nondeliveries. According to FedEx's policy, when a driver fails to make a scheduled delivery, he or she is required to fill out a returned delivery receipt and check off one of twenty-eight possible reasons for the nondelivery. Misloaded freight is an acceptable reason for nondelivery. However, Merritt would have been held responsible for such a failure. Several drivers for FedEx testified that dispatchers like Merritt routinely instructed drivers to list a 3 p.m. closure as the cause of a non-delivery, regardless of the true reason. Merritt denied having told Grass to report that the...

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